Silent killer that stalks summer

Kelly Taylor remembers the moment she found her son Jaise dead. He had slipped out of her sight for 90 seconds in the backyard of a Port Stephens holiday home. Within moments her eight year-old daughter had spotted him at the bottom of the pool and dragged his limp, cold body from the water.

It was an eerily silent death. No one heard the five year-old wander through a faulty pool gate and quietly fall into the pool. Once his blue face was against the pavement, however, chaos set in as Taylor frantically attempted CPR and screamed for help while her two other children were inconsolable.

''I was about to take him out for fish and chips,'' said Ms Taylor, 33. ''And I never got to ever again.''

Ms Taylor, from St Marys, will spend her third Christmas without Jaise on Tuesday.

But this summer should, according to the state government, be the last of such discontent.

By next summer, every backyard swimming pool in NSW will be listed on a mandatory, state-wide register and every pool owner will have registered their pool and certified ''to the best of their knowledge'' that it is safe and complies with legislation.

The new legislation was drafted to end the state's over-representation in national backyard pool drownings, argued the Minister for Local Government, Don Page.

''The greater tragedy is that effective and well-maintained swimming pool fences, combined with vigilant adult supervision, could have prevented most, if not all, of these drownings,'' he said when moving the motion in October.

Yet those working at the coalface of drowning prevention say the legislation will do nothing to curb tragic deaths like Jaise's and may even result in a rise in child drownings.

''This is a policy solution that is destined to fail, and children's lives will be in the balance,'' said Professor Paul Middleton, the chairman of the NSW branch of the Australian Resuscitation Council. ''Without mandatory inspections of private pools to certify their safety compliance properly, this legislation will not save lives.''

More than half of the 21 children under four who drowned in swimming pools in the last year were from NSW.

In addition, about 36 NSW children are left with permanent brain injuries each year from swimming pool accidents.

The backyard pool is a quintessential part of balmy summer life in Australia. But of the 340,000 private swimming pools in NSW, more than 80 per cent do not comply with legislation.

Aside from the heartbreak of losing a child, the legal ramifications of non-compliance became very real for an Armidale retiree who was charged with manslaughter in July because a neighbour's toddler wandered through his backyard and fell into his dilapidated pool.

In an Australian first, Philip Cameron, 61, was charged with the manslaughter of two-year old Sebastien Yeomans after a frantic search by neighbours eventually found him in Mr Cameron's poorly fenced, badly run-down pool.

On Wednesday, the Director of Public Prosecutions dropped all charges because there was no reasonable prospect of conviction. Yet his solicitor, Mark Daley, said there were ''no winners'' in the tragic case.

''[Mr Cameron] will have to live with what happened here for the rest of his days,'' he said outside Armidale Local Court.

A coronial inquest into the deaths of six children in backyard pools in 2010 found that the state's alarmingly high number of drownings came down to non-compliance.

In those deaths, none of the pools had gates and fences that complied with existing laws.

The inquest prompted a two-year review of legislation culminating in legislative changes passed in October. The new laws will require:

Pool owners to self-register their pool and certify to the best of their knowledge that it complies with legislation or risk a $2200 penalty.

Pool owners to pay about $150 for a professional inspection before a property can be sold or leased.

Councils to develop their own locally-appropriate scheme for inspecting pools.

Mandatory, periodic inspections of pools in tourist and visitor accommodation.

Yet Mr Page baulked at the final hurdle, said Michael Morris, the founder of the drowning prevention charity Samuel Morris Foundation.

The government did not introduce a scheme similar to those in Western Australia and Queensland, where every pool owner must pay about $200 for a mandatory inspection every three years.

The introduction of the laws in both states received some backlash yet the rate of compliance in Western Australia has since doubled and the number of pool drownings has halved.

''I'm concerned that we've gone one half of the way but won't see that followed through because there are no mandatory inspections for all pool owners,'' he said.

''We already know that 80 per cent of pools are non-compliant without mandatory inspections. It's likely we'll see a short-term dip in drownings because of the public education campaign around the new laws but as soon as it's off the agenda, the numbers will creep up.''

He likened the system of self-certifying one's own pool to self-registering one's own car.

Kim Lovegrove, a solicitor and conduit professor of building regulation and certification, said the system would create a legal minefield and possibly more cases like Mr Cameron's.

It's also likely that public liability and home insurance costs may rise because of the risk associated with self-certifying a non-compliant pool.

''It will potentially change the liability dynamic,'' Professor Lovegrove said. ''Personally, I believe in highly intrusive 'belts and braces' regulation rather than giving the individual primary autonomy for compliance. It's a choice to have a pool and you assume a paternalistic risk when you do.''

What worries Mr Lovegrove about self-certification is that pool owners are often innocently ignorant of their pool's dangers.

A qualified pool inspector, Andrew Plint, whose daughter Hannah drowned in a non-compliant Queensland pool in 2007, recently inspected a pool with a 1500-kilogram horse tied to the fence.

Others are often surrounded by children's swing sets, trampolines, pot plants and clotheslines.

''Owners are usually quiet shocked when you point out the basics,'' said his wife, Kathleen, who runs Hannah's Foundation to campaign on pool safety.

Mr Page has defended his legislation as ''striking the right balance between pool owner responsibility and government regulation''. He said it was not practical to inspect all pool fences and councils were ''best placed to decide which pools should be inspected and how often''.

Under the new laws, councils have 18 months to devise their own scheme for pool inspections in their local area.

Mr Morris said having 152 different schemes would be a nightmare.

''We will have pools on opposite sides of the street that are subject to different schemes,'' he said.

A uniform, mandatory scheme would be a greater cost burden. ''But what price is a life?'' he said.